A Step Toward Freedom: Reduce the Number of Crimes

In his essay for Solutions: American Leaders Speak Out on Criminal Justice, Marco Rubio urges a review of our criminal code with an eye towards rationalizing the list of federal statutory and regulatory crimes, but thinks drug legalization is a bridge too far.

April 27, 2015

Hon. Marco Rubio, United States Senator for Florida

Earlier this year, the U.S. Supreme Court considered the case of John Yates, a Florida fisherman who once earned his living harvesting fish in the Gulf of Mexico. That career came to an abrupt end when, following a dispute over red grouper fish, Mr. Yates found himself not just out of a job, but also a convicted felon.

The trouble for Mr. Yates began when a Florida Fish and Wildlife Conservation inspector boarded his ship to inspect his catch. The officer alleged that 72 of the grouper Mr. Yates had caught were less than the then-minimum legal size of 20 inches. (That minimum has since been lowered to 18 inches.) All of Mr. Yates’ fish were 18 and three-quarter inches or longer. Most were a mere fraction of an inch shorter than the legal minimum.

Ordinarily, catching a few under-sized fish might result in a civil fine, not jail time. This was not the case here. When investigators re-measured Mr. Yates’ catch after he docked his boat, they found the fish were still undersized, but slightly less so. The government then alleged that Mr. Yates threw some of the offending fish overboard. That allegation, a loosely worded federal statute, and overzealous prosecutors combined to turn a possible fine into a federal criminal case.

Mr. Yates was charged and convicted under a provision of the federal Sarbanes-Oxley Act initially meant to prevent white collar criminals from shredding documents. The law carries a maximum penalty of 20 years in prison. Mr. Yates served 30 days in jail, followed by three years of supervised release. He lost his job as a boat captain for hire.

Fortunately for Mr. Yates, he managed to convince the U.S. Supreme Court, by a narrow 5-4 majority, to reverse his conviction. The Justices were sharply divided on the definition of “tangible things” in the

Sarbanes-Oxley Act and whether it included fish. While this question of statutory interpretation might seem scintillating to lawyers, the case highlights a problem much bigger than a few fish or a legal debate. American criminal law has grown far beyond its proper scope and is in serious need of reform.

Even those Justices who voted to allow Mr. Yates’ conviction to stand agreed that the case highlights a cause for concern. Justice Elena Kagan, writing for herself and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, wrote that this “is a bad law — too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, [it] is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”

John Yates going to jail for red grouper highlights a fundamental problem in American criminal law today. Lawmakers have increasingly turned to criminal law as a form of regulation. Recklessly passed, duplicative, conflicting, and vague laws have turned criminal law into a trap for the unwary.

There are now thousands of federal crimes; indeed so many that legal experts cannot agree on a specific number. This is despite the fact that the Constitution gives the federal government no general criminal jurisdiction. To compound the problem, Congress has delegated broad enforcement powers to unelected bureaucrats in federal agencies. Attorney and writer Harvey A. Silverglate has estimated that the average

American now unknowingly commits three felonies a day. This state of affairs is intolerable in a republic and practically invites selective enforcement.

There is an emerging consensus that the time for criminal justice reform has come. A spirited conversation about how to go about that reform has begun. Unfortunately, too often that conversation starts and ends with drug policy. That is an important conversation to have. But when we consider changing the sentences we impose for drug laws, we must be mindful of the great successes we have had in restoring law and order to America’s cities since the 1980s drug epidemic destroyed lives, families, and entire neighborhoods. I personally believe that legalizing drugs would be a great mistake and that any reductions in sentences for drug crimes should be made with great care.

Nonetheless, we must not let disagreements over drug policy distract us from the pressing need for a thorough review of our entire criminal code. Convicting someone of a crime is the most serious action a government can take. Once a person becomes a “convicted criminal,” the government can take his property, his liberty, and even his life. Yet, despite the gravity of criminal law, the federal government has at times been wildly irresponsible in what it treats as a crime and how it proves guilt.

No one doubts the need for criminal law, and the federal government has an important role to play in combating offenses ranging from organized crime to white collar environmental crime. But the current state of criminal law, especially federal criminal law, is simply foreign to our Constitution and unworthy of a free people. Congress can and must take sensible steps to begin correcting this serious problem. It should start by cataloguing all federal crimes in one statutory location, restoring a standard of intent in criminal law, reining in out-of-control regulatory agencies, and stopping the seizure of the property of citizens to fund law enforcement agencies.

First, Congress should immediately require the federal government and regulatory agencies to catalogue and publish in one place all the existing statutory and regulatory crimes. Remarkably, this is not available today. Following a comprehensive catalogue of criminal law, we should pay special attention to laws that are duplicative, underused, or better handled by states. Those laws should be identified for potential repeal.

Second, Congress should restore a standard of intent to federal crimes. Traditionally, criminal law included what lawyers call a mens rea. The government could not bring down the weight of criminal condemnation on an individual simply because he had made a mistake; it also had to show that he had a mental state that made him worthy of punishment.

Consider this common illustration of this concept. If a person on the way out of a restaurant accidentally picks up an umbrella that he thinks is his, he has made a mistake. He has not committed a crime. However, if a person deliberately takes someone else’s umbrella from a restaurant because it begins to rain and he forgot to pack his own umbrella, he has committed theft. To convict him of a crime, the government must prove intent to steal — the relevant state of mind. That is the difference mens rea makes in criminal law.

This critical component of criminal law has been neglected in recent decades. Congress can begin to restore this damage by insisting on standards of intent for any new criminal law and by establishing a default mens rea standard for existing federal criminal laws that lack one. There may be a limited place for crimes that do not require a standard of intent; if so, Congress should expressly make that decision in the relevant laws.

Third, Congress must rein in out-of-control regulatory agencies. It should stop delegating additional criminal lawmaking authority to regulators. The public has long understood the burden unaccountable regulators place on business and ordinary Americans. In many cases, regulations have become more consequential than the statutes that they purportedly execute. It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations. I have also joined many of my colleagues in supporting legislation that would require congressional review of major regulations. It is time we apply similar attention to regulations with criminal implications: regulations should be reviewed by Congress and potentially offset by the simplification and repeal of older regulations. Better still, Congress in the future should refuse to delegate new criminal lawmaking authority to unelected regulators. While truly bad actors deserve punishment, Congress should be mindful of the serious impact our bewildering thicket of statutory and regulatory criminal laws have on well-meaning businesses, which now must spend millions in compliance costs and may decline to pursue innovative ideas for fear of possible criminal punishment.

Fourth, law enforcement agencies should never have a conflict of interest. Currently, through civil asset forfeiture, law enforcement agencies can seize the property of citizens simply by asserting a connection to illegal activity without ever pursuing criminal charges. Agencies are often allowed to keep financial proceeds raised through these seizures. These types of perverse incentives to raise funds can badly skew the priorities and judgment of otherwise well-intentioned public servants, especially in tough budgetary times. The potential for abuse is significant, especially in civil forfeiture which does not carry many of the safeguards traditionally found in criminal law. Attorney General Eric Holder recently announced he would curtail some aspects of civil forfeiture. It is a welcome start, but Congress should go further and end this practice by requiring all proceeds from federal forfeiture must go to the general fund of the U.S. Treasury. Public interest and safety should be the only factors motivating property seizure.

Certain Roman Emperors had a practice of posting new criminal offenses so high up on columns in the Forum that subjects could not read them, nor hope to comply with them. This story is usually told as evidence of the madness and cruelty of those leaders. As Americans, we deserve a criminal justice system that is neither mad, nor cruel, but fair and just — with criminal laws and regulations that are easy to understand and not prone to abuse.

With the four steps outlined above as a starting point, Congress can begin the project of restoring a criminal justice system that both protects public safety and reflects our values as a free people. We can also turn to the difficult problem of drug crimes. Our hearts are broken by stories of individuals and families whose lives have been wrecked by drugs, and we must re-commit as a society to helping these souls find a productive path forward.

The states have made important strides here, particularly with youthful and first-time offenders. We should continue this work, focusing on evidence-based rehabilitation and recidivism reduction programs. Much of the criminal behavior in America is committed by repeat offenders, and much of it is drug-related. If we are able to break this cycle early, we can change not just the life trajectory of the offenders, but those of the many lives he or she touches. The government, of course, cannot do this alone. Families, faith communities, and employers all play indispensable roles.

We do not have to choose between the rampant criminality of the 1970s and 1980s and the overreaching criminal laws and overstretched prison resources we have today. Working together, those of us in government along with partners in civil society can work to restore an America characterized by liberty and law.